We face the prospect tomorrow of a newspaper which no longer exists being responsible for damages in a country where it was not printed and where they speak a different language to the one in which the article complained of was published. Not only that, the award could be higher than that given when the same matter was considered in a British court in 2008.
Max Mosley's legal battle with Rupert Murdoch's News Group Newspapers over the News of the World's publication of intimate details of his participation in a sado-masochistic orgy has been extraordinary in many ways. Quite apart from the revelations themselves, Mosley broke a record for privacy damages when the High Court awarded him £60,000. After that verdict, the paper's editor Colin Myler stood outside the court and claimed: "Our press is less free today."
But Max wasn't done. Far from being shy about the exposure of his sexual shenanigans, Mosley went out on the public speaking circuit, entertaining crowds with his conjecture on the sex lives of prominent editors. He took his case to the European Court of Justice in a failed attempt to compel journalists to reveal their stories to their subjects prior to publication.
And still he was not done. Having been president of the Paris-headquartered Federation International de l'Automobile at the time of the Sunday tabloids lurid revelations, Mosley who studied law at Gray's Inn and is a qualified barrister, realised he had a right to sue Murdoch's company in France as well. On Tuesday, the Palais de Justice will return its verdict – probably in Mosley's favour.
So far the court has heard the News of the World described as "gutter press" (Mosley's lawyer) and as one of the "guard dogs of British democracy" (News Group's lawyer). Mosley is thought to be seeking €100,000 from both the publisher and the reporter Neville Thurlbeck, who has been charged with violating privacy laws and faces a maximum punishment of a year in prison and a £45,000 fine. "I guess it would be the icing on the cake if he could get a criminal conviction," says Nick King, a reputation management specialist at Sheridans.
The orgy privacy case has unfolded in parallel with the phone-hacking scandal, which caused the paper's closure in July. Thurlbeck, who has not attended the French hearing, is one of the former members of the News of the World staff arrested in the police inquiry.
What will the French court decide? "I would be surprised if he gets big damages, I would expect them to take into account the award in the UK," says Rod Dadak, a defamation specialist at Lewis Silkin, who expects Mosley to win his case. But even if the former Formula 1 boss fails to obtain a major award, he will have succeeded in raising awareness of the possibility of bringing a privacy action in France. "It will encourage other people to see that as a route to get back at the newspaper or publication in question," says Robin Shaw of Davenport Lyons.
Only 3,000 copies of the edition of the News of the World in question were distributed in France and just 1,500 of those were sold. Padraig Reidy, of the freedom of speech group Index on Censorship, suspects Mosley's motives. "While he may feel aggrieved, it seems he is trying to establish a rule that no newspaper in Europe should be allowed to report on the private lives of public figures."
In another development two weeks ago, litigants were given another stick with which to beat the British press when the European Court of Justice gave actor Olivier Martinez, the right to sue the Sunday Mirror in the French courts over an article published on the Internet about his relationship with Kylie Minogue.
Tomorrow it is Max Mosley who has the whip hand over his former tabloids tormentors.